Amended in Senate May 31, 2016

Amended in Assembly March 28, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 1723


Introduced by Assembly Member Dodd

(Coauthors: Assembly Members Brough, Chávez, Lackey,begin delete and Mullinend deletebegin insert Maienschein, Mullin, and Waldronend insert)

(Coauthor: Senator Hertzberg)

January 28, 2016


An act to amend Section 1788.18 of the Civil Code, relating to debt collection.

LEGISLATIVE COUNSEL’S DIGEST

AB 1723, as amended, Dodd. Debt collection.

Existing law requires a debt collector that receives a copy of a police report filed by the debtor alleging that the debtor is the victim of an identity theft crime and a written statement in which the debtor claims to be the victim of identity theft to cease collection activities until completion of a review. Existing law requires the debt collector to review and consider all of the information provided by the debtor and other available information and authorizes the debt collector to recommence debt collection activities only upon making a good faith determination that the information does not establish that the debtor is not responsible for the specific debt in question.

This bill, the Identity Theft Resolution Act, would require the debt collector, upon receipt of the police report and written statement described above, if it furnished adverse information about the debtor to a consumer credit reporting agency, to notify the consumer credit reporting agency that the account is disputed, and initiate a review, as specified, within 10 business days. The bill would require the debt collector to send notice of its determination to the debtor no later than 10 business days after concluding the review. The bill would require a debt collector that does not recommence collection activities under these provisions to notify the creditor, no later than 10 business days after making its determination, and if it furnished adverse information to a consumer credit reporting agency, to notify the agency to delete that information no later than 10 business days after making its determination. The bill would also prohibit a creditor from pursuing further collectionsbegin insert against the consumerend insert on the debt or selling thebegin delete debt to a debt collector,end deletebegin insert debt,end insert if the creditor has received notice thatbegin insert theend insert debt collector has terminated debt collection activities, as described above.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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SECTION 1.  

This act shall be known, and may be cited, as
2the Identity Theft Resolution Act.

3

SEC. 2.  

Section 1788.18 of the Civil Code is amended to read:

4

1788.18.  

(a) Upon receipt from a debtor of all of the following,
5a debt collector shall cease collection activities until completion
6of the review provided in subdivision (d):

7(1) A copy of a police report filed by the debtor alleging that
8the debtor is the victim of an identity theft crime, including, but
9not limited to, a violation of Section 530.5 of the Penal Code, for
10the specific debt being collected by the debt collector.

11(2) The debtor’s written statement that the debtor claims to be
12the victim of identity theft with respect to the specific debt being
13collected by the debt collector.

14(b) The written statement described in paragraph (2) of
15subdivision (a) shall consist of any of the following:

16(1) A Federal Trade Commission’s Affidavit of Identity Theft.

17(2) A written statement that contains the content of the Identity
18Theft Victim’s Fraudulent Account Information Request offered
19to the public by the California Office of Privacy Protection.

20(3) A written statement that certifies that the representations are
21true, correct, and contain no material omissions of fact to the best
22knowledge and belief of the person submitting the certification.
P3    1A person submitting the certification who declares as true any
2material matter pursuant to this subdivision that he or she knows
3to be false is guilty of a misdemeanor. The statement shall contain
4or be accompanied by the following, to the extent that an item
5listed below is relevant to the debtor’s allegation of identity theft
6with respect to the debt in question:

7(A) A statement that the debtor is a victim of identity theft.

8(B) A copy of the debtor’s driver’s license or identification card,
9as issued by the state.

10(C) Any other identification document that supports the
11statement of identity theft.

12(D) Specific facts supporting the claim of identity theft, if
13available.

14(E) Any explanation showing that the debtor did not incur the
15 debt.

16(F) Any available correspondence disputing the debt after
17transaction information has been provided to the debtor.

18(G) Documentation of the residence of the debtor at the time of
19the alleged debt. This may include copies of bills and statements,
20such as utility bills, tax statements, or other statements from
21businesses sent to the debtor, showing that the debtor lived at
22another residence at the time the debt was incurred.

23(H) A telephone number for contacting the debtor concerning
24any additional information or questions, or direction that further
25communications to the debtor be in writing only, with the mailing
26address specified in the statement.

27(I) To the extent the debtor has information concerning who
28may have incurred the debt, the identification of any person whom
29the debtor believes is responsible.

30(J) An express statement that the debtor did not authorize the
31 use of the debtor’s name or personal information for incurring the
32debt.

33(K) The certification required pursuant to this paragraph shall
34be sufficient if it is in substantially the following form:


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“I certify the representations made are true, correct, and
contain no material omissions of fact.


(Date and Place)

(Signature)

 

6(c) If a debtor notifies a debt collector orally that he or she is a
7victim of identity theft, the debt collector shall notify the debtor,
8orally or in writing, that the debtor’s claim must be in writing. If
9a debtor notifies a debt collector in writing that he or she is a victim
10of identity theft, but omits information required pursuant to
11subdivision (a) or, if applicable, the certification required pursuant
12to paragraph (3) of subdivision (b), if the debt collector does not
13cease collection activities, the debt collector shall provide written
14notice to the debtor of the additional information that is required,
15or the certification required pursuant to paragraph (3) of
16subdivision (b), as applicable, or send the debtor a copy of the
17Federal Trade Commission’s Affidavit of Identity Theft form.

18(d) Within 10 business days of receiving the complete statement
19and information described in subdivision (a), the debt collector
20shall, if it furnished adverse information about the debtor to a
21consumer credit reporting agency, notify the consumer credit
22reporting agency that the account is disputed, and initiate a review
23considering all of the information provided by the debtor and other
24information available to the debt collector in its file or from the
25creditor. The debt collector shall send notice of its determination
26to the debtor no later than 10 business days after concluding the
27review. The debt collector may recommence debt collection
28activities only upon making a good faith determination that the
29information does not establish that the debtor is not responsible
30for the specific debt in question. The debt collector’s determination
31shall be made in a manner consistent with the provisions of
32subsection (1) of Section 1692 of Title 15 of the United States
33Code, as incorporated by Section 1788.17 of this code. The debt
34collector shall notify the debtor in writing of that determination
35and the basis for that determination before proceeding with any
36further collection activities. The debt collector’s determination
37shall be based on all of the information provided by the debtor and
38other information available to the debt collector in its file or from
39the creditor.

P5    1(e) No inference or presumption that the debt is valid or invalid,
2or that the debtor is liable or not liable for the debt, shall arise if
3the debt collector decides after the review described in subdivision
4(d) to cease or recommence the debt collection activities. The
5exercise or nonexercise of rights under this section is not a waiver
6of any other right or defense of the debtor or debt collector.

7(f) The statement and supporting documents that comply with
8subdivision (a) may also satisfy, to the extent those documents
9meet the requirements of, the notice requirement of paragraph (5)
10of subdivision (c) of Section 1798.93.

11(g) A debt collector who ceases collection activities under this
12section and does not recommence those collection activities shall
13do all of the following:

14(1) If the debt collector has furnished adverse information to a
15consumer credit reporting agency, notify the agency to delete that
16information no later than 10 business days after making its
17determination.

18(2) Notify the creditor no later than 10 business days after
19making its determination that debt collection activities have been
20terminated based upon the debtor’s claim of identity theft.

21(h) Upon receipt of the notification described in paragraph (2)
22of subdivision (g), the creditor shall not pursue further collections
23begin insert against the consumerend insert on, or sell,begin delete a consumerend deletebegin insert the end insert debt.

24(i) A debt collector who has possession of documents that the
25debtor is entitled to request from a creditor pursuant to Section
26530.8 of the Penal Code is authorized to provide those documents
27to the debtor.

28(j) Notwithstanding subdivision (h) of Section 1788.2, for the
29purposes of this section, “debtor” means a natural person, firm,
30association, organization, partnership, business trust, company,
31corporation, or limited liability company from which a debt
32collector seeks to collect a debt that is due and owing or alleged
33to be due and owing from the person or entity. The remedies
34provided by this title shall apply equally to violations of this
35section.



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